STATE OF NORTH CAROLINA,
Plaintiff,
v
.
Guilford County
No. 02 CRS 101498-99
JAMES ALTON DEAN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Attorney Brian Michael Aus, for the defendant-appellant.
STEELMAN, Judge.
James Alton Dean (defendant) appeals his conviction for the
offenses of incest and sex offense in a parental role. For the
reasons stated herein, we find no error.
AR, then age seventeen, was the stepdaughter of defendant.
She lived with her mother and defendant. On 30 May 2002 AR was
home with her sister, brother, and defendant. Her mother was at
work. AR went into the bathroom to take a shower. Defendant
followed her into the bathroom, shut the door, and demanded that
she remove her pants. Defendant, after unsuccessfully attempting
to have anal sex with her, had vaginal intercourse with her.
Defendant then took a shower, telling AR to clean up and not tellher mother. AR called 911, reporting that she had been raped by
her stepfather, and was taken by ambulance to a hospital.
At the hospital, AR was examined by a nurse. The examination
revealed five vaginal tears and a reddened cervix, all consistent
with recent nonconsensual intercourse. DNA obtained from vaginal
swabs taken from AR matched that of defendant.
The State charged defendant with Second Degree Rape, Attempted
Second Degree Sex Offense, Sex Offense in a Parental Role, and
Felony Incest. Defendant pled not guilty to all charges. The jury
found defendant not guilty of the charges of Second Degree Rape and
Attempted Second Degree Sex Offense but found him guilty of Sex
Offense in a Parental Role and Incest. The trial court sentenced
him to consecutive active sentences of 25-39 months for Sex Offense
in a Parental Role and 16-20 months for Incest.
We chose to address defendant's fourth argument first. In
defendant's fourth argument, he contends that it was plain error
for him to be prosecuted for both the crime of Sexual Offense in a
Parental Role under N.C. Gen. Stat. § 14.27.7(a) and Incest under
N.C. Gen. Stat. § 14-178(a). We disagree.
Defendant argues that conviction under both statutes
constitutes double punishment for the same criminal act, which is
prohibited under both the United States Constitution and the
Constitution of the State of North Carolina. Defendant has failed
to properly preserve the matter for appeal and now asserts plain
error. However, our Supreme Court has held that plain error
analysis only applies to jury instructions and evidentiary matters. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002).
Therefore defendant has not preserved this issue for appellate
review. Id.
Even assuming arguendo that this issue is properly preserved
for appeal, defendant's argument is without merit. The Fifth
Amendment of the United States Constitution and Art. I., sec. 19 of
the North Carolina Constitution prohibit multiple punishments for
the same offense arising out of a single transaction, absent clear
legislative intent to the contrary. See Missouri v. Hunter, 459
U.S. 359, 365, 74 L. Ed. 2d 535, 542 (1983); State v. Etheridge,
319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987). “Where the same act
or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one is whether each provision requires proof
of an additional fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932).
It is clear that Incest and Sex Offense in a Parental Role are
two distinct offenses which require distinct proof of facts. N.C.
Gen. Stat. § 14-178(a), entitled Incest, states:
A person commits the offense of incest if the
person engages in carnal intercourse with the
person's (i) grandparent or grandchild, (ii)
parent or child or stepchild or legally
adopted child, (iii) brother or sister of the
half or whole blood, or (iv) uncle, aunt,
nephew, or niece.
In contrast, the relevant portion of N.C. Gen. Stat. § 14-27.7(a),
defines Intercourse and Sexual Offenses with Certain Victims:
If a defendant who has assumed the position of
a parent in the home of a minor victim engagesin vaginal intercourse or a sexual act with a
victim who is a minor residing in the home, .
. . the defendant is guilty of a Class E
felony.
To commit the crime of incest, the parties must engage in
carnal intercourse and a familial relationship must exist. “The
gravamen of the crime of incest is intercourse between parties
within the degree of relationship set out in the statute.” State
v. Collins, 44 N.C. App. 27, 30, 259 S.E.2d 802, 804 (1979). In
contrast, a sexual offense in a parental role requires that the
party must be a “minor victim,” and “[p]enetration is not essential
to support a conviction of sexual activity by a substitute parent.”
State v. Hoover, 89 N.C. App. 199, 208, 365 S.E.2d 920, 926 (1988).
Consequently, the custodial sex offense under N.C. Gen. Stat. §
14.27-7(a) in the instant case required proof of facts not required
for the crime of incest under N.C. Gen. Stat. § 14-178. Double
jeopardy considerations are not implicated.
This holding is consistent with well-established North
Carolina case law finding that sexual offenses and offenses against
public morality and decency are separate and distinct offenses with
distinct proof of facts. In State v. Etheridge, 319 N.C. 34, 352
S.E.2d 673 (1987), the defendant was convicted of statutory rape,
taking indecent liberties with a child, and incest for each episode
of intercourse with his daughter. He was also convicted of crimes
against nature, taking indecent liberties with a child, and sexual
offense in the second degree after engaging in anal sex with his
son. Our Supreme Court held that in each case, the offenses
against both the son and the daughter were “legally separate anddistinct crimes and that convictions for all three crimes arising
out of the same transaction did not place defendant in double
jeopardy.” Id. at 51, 352 S.E.2d at 683. See also State v.
Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), overruled on different
grounds, State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)
(indecent liberties is not a lesser included offense of statutory
rape); State v. Collins, 44 N.C. App.27, 259 S.E.2d 802 (1979)
(statutory rape is not a lesser included offense of incest); State
v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920 (1988) (crime against
nature is not a functional equivalent of a lesser included offense
of sexual activity by a substitute parent); State v. Copeland, 11
N.C. App. 516, 181 S.E.2d 722 (1971) (indecent liberties is not a
lesser included offense of crime against nature). This argument is
without merit.
In defendant's first argument, he contends that he should have
only been prosecuted for the specific crime of Incest and not the
general crime of Sexual Offense in a Parental Role. We disagree.
Defendant did not raise this issue at trial, and has thus not
preserved it for appellate review.
N.C. R. App. P. Rule 10(b)(1)
.
We note that defendant attempts to preserve plain error review of
this issue in the assignment of error upon which this argument is
based. However, defendant does not argue plain error in his brief
in violation of N.C. R. App. P. Rule 28(b)(6), and because this
issue involves neither evidentiary matters nor jury instructions,
it is not subject to plain error analysis. Wiley, 355 N.C. at 615,
565 S.E.2d at 39. Notwithstanding his failure to preserve this issue for appeal,
defendant's claim is without merit. Defendant argues that under
Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 508, 524
S.E.2d 605, 607 (2000), a specific statute controls over a general
statute if the two cannot be reconciled.
Where there is one statute dealing with a
subject in general and comprehensive terms,
and another dealing with a part of the same
subject in a more minute and definite way, the
two should be read together and
harmonized...but, to the extent of any
necessary repugnancy between them, the special
statute...will prevail over the general
statute.
Krauss v. Wayne County Dep't of Soc. Servs., 347 N.C. 371, 378, 493
S.E.2d 428, 433 (1997). However, as discussed above, Incest and
Sex Offense in a Parental Role are separate crimes, requiring proof
of distinct facts, even when arising out of the same act. This
argument is without merit.
In defendant's second argument, he contends that the trial
court erred in failing to dismiss the charge of Sexual Offense in
a Parental Role due to insufficient evidence that AR was a minor at
the time of the offense. We disagree.
N.C. Gen. Stat. § 14-27.7(a) applies to those who have assumed
the position of a parent in the home of a “minor victim.”
Defendant argues that the statute does not define the age of a
minor within the statute and points to several other statutes that
specifically state that the offender or the victim must be under or
over the age of sixteen. See, e.g., N.C. Gen. Stat. § 14-202.1(a)
(taking indecent liberties with children requires that the child beunder the age of 16 years and the perpetrator at least five years
older than the child in question); N.C. Gen. Stat. § 14-202.2
(defining when a person who is under the age of 16 years is guilty
of taking indecent liberties with children); N.C. Gen. Stat. § 14-
202.3 (a person is guilty of solicitation of a child by a computer
if the person is 16 years of age or older); N.C. Gen. Stat. § 14-
27.7A (statutory rape or sexual offense of person who is 13, 14, or
15 years old); N.C. Gen. Stat. § 14.39(a) (kidnapping victims
include those sixteen years of age or younger without the consent
of a parent or legal custodian of such person); N.C. Gen. Stat. §
14-178(b)(1)b. (a person who commits incest is guilty of a Class B1
felony where the child is 13, 14, or 15 years old and the offender
is at least four years older than the child)).
None of the statutes to which defendant cites defines a minor
as being sixteen years or younger. Further, none of the cited
statutes apply to N.C. Gen. Stat. § 14-27.7(a). If the legislature
had intended that a minor be defined as being under the age of
seventeen for purposes of this statute, they could easily have so
stated. The definition of a minor is governed by N.C. Gen. Stat.
§ 48A-2, which states that “[a] minor is any person who has not
reached the age of 18 years.” Since AR was seventeen at the time
of the offense, she had not reached the age of majority and was
therefore a “minor victim,” as specified under N.C. Gen. Stat. 14-
27.7(a). This argument is without merit. In defendant's third argument, he contends that it was plain
error for the trial court to instruct that a minor is a person who
has not attained the age of eighteen years. We disagree.
Because we have held that the word “minor” refers to a person
under eighteen years of age for the purposes of N.C. Gen. Stat. §
14-27.7(a), we further hold that the judge's instruction to the
jury was proper under the law. This argument is without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Judges WYNN and SMITH concur.
Report per Rule 30(e).
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